Workplace

Serving the public good

Ed Waitzer is on a mission to expand the role of corporate boards well beyond narrow definitions of fiduciary duty

Illustration by Cornelia Li

Ed Waitzer is squeezing this interview into a schedule that doesn’t appear to have any breathing room.

Today, for example, he’s already been to the gym (a busted knee in December and a recent hip replacement mean he can no longer run) and has blasted through the daily newspapers in the steam room. As a senior partner at Stikeman Elliott LLP in Toronto and head of its corporate governance group, he’s dealt with some governance issues in one client’s family business and some employment issues for another client, a public company. He’s got a meeting in an hour with the chair of the Ontario Securities Commission – which he chaired from 1993 to 1996 – to discuss some proposals around climate-risk disclosure. There’s a board meeting later in the afternoon, and class in the evening: Waitzer teaches corporate law, in a joint appointment between Osgoode Hall Law School and York University’s Schulich School of Business, where he directs the Hennick Centre for Business and Law. (He also lectures regularly at various Chilean university law and business schools; he’s on the advisory board of the Pontificia Universidad Católica de Chile’s corporate governance centre.) And then there’s the board presentation he’s putting together for Monday, the slew of articles he’s writing, a panel for accountants on auditor liability for negligence in court, the fellowships at the Centre for International Governance and Innovation and the C.D. Howe Institute, the committees, the charitable boards.

If you’re having trouble keeping track, that’s at least two, maybe three full-time jobs, down from four when he stepped down as chair of the LCBO in 2016.

Not to mention the seven adult kids to visit and keep track of, a brood that includes his five sons and the two daughters of his partner, Susannah Robinson, a vice-president at Edmonton-based utility company EPCOR.

And yet, Waitzer is relaxed and gracious during our conversation, as though he has all the time in the world to delve into the minutiae of why he’s receiving the 2018 Corporate Knights Award of Distinction at an event on June 7th – even if he seems genuinely diffident about the reasons he’s being honoured. “It’s because I’m getting old,” he quips, although at 64 it’s obvious that he has no plans to slow down anytime soon.

“Ed has more bandwidth than anyone else I know,” says pension fund guru Keith Ambachtsheer, director emeritus of the International Centre for Pension Management at U of T’s Rotman School of Management. He and Waitzer frequently collaborate on scholarship and action around pension reform.

The common thread at the heart of Waitzer’s diverse body of work might be characterized as a sustained counteroffensive against what he has termed a “compliance mentality”: following the rules, or “doing things right,” at the expense of doing the right thing.

“What Ed is putting out there is the very powerful, very simple notion that says that boards can’t simply follow a bunch of rules or check off a bunch of boxes and say, ‘If we do this and this, we’ve fulfilled our fiduciary duty,’” says Ambachtsheer.

Rather, Waitzer has spent much of his legal career advocating the kind of in-depth analysis that forces boards to consider more broadly for what and to whom they are accountable, as well as whether they sufficiently take into account their multiple stakeholders’ needs over the long term.

In the case of pension funds, for example, stakeholders might include retirees, the employer or employers, current and (crucially) future employees, and the communities in which they live and work, not to mention the built and natural environments and the people and places affected by supply chains.

“Ed has spent much of his life advancing the legal foundations for corporations and pension funds to better serve the public good,” says Corporate Knights CEO and publisher Toby Heaps. “He’s brought a high level of credibility to interpreting a complex body of law in ways that expand the concept of fiduciary responsibility and allow business leaders to use their power to better serve the interests of a wide range of stakeholders. He makes it less possible for a corporate or pension board to shut down, say, discussions about blackballing child labour or coal because, ‘We have a fiduciary duty to our shareholders.’”

Former MP Belinda Stronach has witnessed those traits firsthand during Waitzer’s long-time tenure as an advisor to Magna International, where she was a board member and later executive vice-chairman. In 2003, she recalls, Waitzer helped to engineer a solution that saw Magna split its automotive and entertainment operations into two companies in response to shareholder concerns.

“We needed a solution that was fair and acceptable to the shareholders, and Ed was very instrumental in helping to construct and arrive at the solution. It was a complex situation, with multiple and sometimes competing views and objectives, and he was and is always very thoughtful and principled and practical. He’s very good at taking into account strong contrary or different viewpoints and presenting an alternative, at aligning interests to find a good solution.”

Waitzer says his focus on the long term has absolutely been shaped by his role as a parent. “I’ve always been focused on institutional and social change, primarily from within the system. But the focus on intergenerational accountability is very much influenced not just by having but learning from my kids,” who are, in various ways, coming into their own as change agents, often at more grassroots level than their father: one son, for example, is a teacher; another, a community organizer.

“It’s the same reason I teach,” says Waitzer: “I’m lucky to have a bunch of smart, highly engaged kids in my classes who force me to rethink my assumptions annually.”

In those corporate law classrooms, Waitzer often finds himself teaching cases he’s worked on, including Magna and the landmark Supreme Court of Canada BCE buyout case, which held that board directors must take into account a broad range of stakeholders beyond a company’s immediate shareholders.

“When I start my corporate law course every year,” says Waitzer, “I say, ‘This is a history course. I can tell you what the law is today and we can talk about the trajectory of the law, but I can promise you that the law you’re going to be working with is going to be very different than what we’re talking about today.’”

What he doesn’t say, but what Waitzer’s more astute students will likely grasp, is that their teacher is not just teaching but actively shaping that future trajectory of the law and its impacts on society.

“Ed isn’t simply a thought leader,” says Ambachtsheer. “He’s involved in the whole spectrum from thought to action. He’s a respected academic on the one hand, and on the other he’s actually arguing [these things] in court in real time. Whether he’s on a board or in a courtroom, he actually gets in situations where he’s the change agent himself.”